Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, November 23, 2015

Notre Dame Center for Ethics and Culture Fall Conference Recap—and a Model for Catholic Universities

The annual fall conference of the Notre Dame Center for Ethics and Culture was this past weekend, and, as Rick and I previewed last week, featured a blockbuster lineup of presentations. Nowhere in the Catholic world, I’d submit, is there a more robust annual academic event of such intellectual breadth and depth, and the Center’s Director, Carter Snead, and his staff should be commended for their hard work that results in such success.

Particular highlights for me were the opening address by Remi Brague on freedom and creation, a paper by Alasdair MacIntyre on justifications for coercion, Jonathan Lear (long one of my intellectual heroes) on Aristotle and Freud, Elizabeth Lev and John Haldane on modern art, a debate between Father Martin Rhonheimer and Thomas Pink on the interpretation of Vatican II’s Dignitatis Humanae, and a panel on vowed religious life and freedom with two good friends, Sister Maria Evangelista Fernandez, OSB and Brother Bryan Kerns, OSA. Rick, Father Thomas Joseph White, OP, and I participated in a panel on religious freedom—its natural law basis (White), the conditions for it in civil society (Garnett), and problems in defining what counts as a religious institution for purposes of legal exemptions (Moreland). Of course, there are also the joys of sharing meals and time together with hundreds of scholars and students from around the world.

And there is a larger point to be made about this moment at Notre Dame and in Catholic higher education generally. As I mentioned last week, I am spending this academic year on leave at Notre Dame as the Mary Ann Remick Senior Visiting Fellow at the Center for Ethics for Ethics and Culture (and my wife, Anna Bonta Moreland, is the Myser Fellow in the Center this year). The Center for Ethics and Culture is a model for Catholic intellectual engagement with undergraduates, graduate students, and faculty at Notre Dame that other universities would be wise to explore and emulate. The Center’s Sorin Fellows program integrates undergraduates into the work of the Center and places them in contact with faculty (as an example, Anna and I hosted a dinner with four Sorin Fellows at our home last month). A Mission Hiring initiative identifies graduate fellows and faculty who can make vital contributions to Notre Dame’s Catholic identity.

There is a well-worn tendency to despair about the future of Catholic higher education, even at those schools such as Notre Dame where the commitment to Catholic identity seems to me exceptionally strong. Since I was an undergraduate at Notre Dame and then through graduate school at Boston College and in faculty and administrative roles at Villanova, I have seen more than 20 years of debate over curriculum, faculty hiring, and student life at Catholic universities. Those who would despair should light a candle rather than curse the darkness by creating and supporting initiatives such as the Center for Ethics and Culture—if such initiatives continue, then the future of Catholic universities in the United States is bright indeed.

November 23, 2015 in Moreland, Michael | Permalink

Monday, November 16, 2015

Douthat on Universities and a Challenge for Catholic Higher Education

I thought this "student-protesters-have-a-point" piece in the New York Times yesterday by Ross Douthat was especially insightful amid these fraught times on campuses. As Douthat puts it in his quick summary of the history of American higher education:

Over this period the university system became increasingly rich and powerful, a center of scientific progress and economic development. But it slowly lost the traditional sense of community, mission, and moral purpose. The ghost of an older humanism still haunted its libraries and classrooms, but students seeking wisdom and character could be forgiven for feeling like a distraction from the university’s real business.

Fast forward to the contemporary university, Douthat writes, and "the university’s deeper spirit remained technocratic, careerist and basically amoral."

But it seems to me there is an opportunity here for Catholic universities to respond to this challenge. Some of the most interesting passages (in Chapter Three, for example) of Laudato si' speak to the concern about technocracy run amok, and--at their best--Catholic universities maintain a commitment to the liberal arts and humanistic learning (even in professional schools of law and business!) that leavens the loss of moral purpose of the university. It may be that Catholic universities can help give the university back to itself. To do so would entail discerning those trends in the modern university that have been destructive of the aims of higher education (pick your favorites) and providing a witness to the possibility of something better--a stronger sense of community, moral and intellectual seriousness, and student formation for a life worth living.

November 16, 2015 in Moreland, Michael | Permalink

"For Freedom Set Free" at Notre Dame This Weekend

I am fortunate to be spending this academic year on leave at Notre Dame as the Mary Ann Remick Senior Visiting Fellow in the Center for Ethics and Culture and teaching a seminar in the Law School. This weekend features the Center for Ethics and Culture's annual conference, and the theme for this year is freedom. Highlights include plenary talks by Remi Brague, Alasdair MacIntyre, Thomas Pink, Father Martin Rhonheimer, and Father Julián Carrón. The undercard includes a panel on religious freedom with Father Thomas Joseph White, OP, Rick Garnett, and yours truly. Full details are here.

November 16, 2015 in Moreland, Michael | Permalink

Monday, November 2, 2015

New Center for Law and Religion at Villanova Law

Great news out of Villanova today--thanks to a generous $2 million gift from Joseph and Eleanor McCullen, Villanova Law is launching a new Center for Law and Religion. The Villanova press release with details is here.

November 2, 2015 in Moreland, Michael | Permalink

Wednesday, October 28, 2015

Signing Statements and the Role Morality of Scholars

The Catholic corner of the Internet has been ablaze for the past day or so about a letter submitted to the New York Times by Catholic theologians upset over Ross Douthat columns about the Synod and, in particular, his use of the word “heresy” in a sub-tweet during a Twitter exchange. Setting aside the letter’s objection to Douthat’s lack of “professional qualifications” (which if enforced would leave the Times op-ed page with only Paul Krugman’s columns on economics and Tom Friedman’s on foreign policy), there is also an important and, to my mind, interesting issue here about the professional norms applicable to signing such statements.

I was once told by a doctoral student of John Rawls’s that Rawls, though an opponent of the Vietnam War, did not sign statements opposing the war because such statements were necessarily too imprecise and usually expressed mere opinion without argument. (Toward the end of his life, Rawls did, alas, sign the so-called “Philosopher’s Brief” in Glucksberg v. Washington, to which David Velleman and Paul Weithman responded powerfully here and here.) I’ve been thinking about the issue of when one should sign statements, amicus briefs, and such since attending an AALS panel last January (organized by my friend and Villanova colleague Michelle Madden Dempsey) on “The Role Morality of the Legal Scholar.” On the panel, Richard Fallon reprised arguments he made a few years ago here raising serious concerns about legal scholars signing amicus briefs, and Amanda Frost responded to Fallon’s arguments along these lines.

For myself, I’ve not been much for signing statements by academics, though I have signed onto amicus briefs in areas of my interest and expertise—including religious freedom and tort and contract law preemption—where I knew the counsel involved and was able to provide substantive feedback in the drafting of the brief. And while I don’t have especially strong or developed views about the role morality of academics when deciding whether to sign this or that statement, it does strike me as an under-explored topic in need of more thoughtful reflection than it usually gets. Notably, what criteria should govern when one does or does not sign a statement? What does one hope to accomplish through such a statement? And how should one navigate between the twin dangers of either self-righteous and ineffectual academic preening in choosing to sign a statement or cowardice in not doing so?

October 28, 2015 in Moreland, Michael | Permalink

Judicial Responsibility and Common Law

As someone who tries to resist the notion (at least in its cruder formulations) that common law is "made" by judges based on "policy" considerations, I found much to appreciate in John Finnis's wide-ranging lecture "Judicial Power: Past, Present and Future" delivered last week at Gray's Inn Hall. To wit:

To state (like Bacon and countless much longer-serving judges) that the common law is declared rather than made is no mere “fairy-tale” unless the statement is mistakenly asserted or heard as a description of the history of the common law.  It is not a description or prediction, fictionalising that history by overlooking the many changes made by the courts, but a statement of judicial responsibility: to identify the rights of the contending parties now by identifying what were, in law, the rights and wrongs, or validity or invalidity, of their actions and transactions when entered upon and done.  There are cases when a court, especially one that is hierarchically supreme and thus not bound to follow the rulings of higher courts, can judge it has the duty now to depart from an interpretation or view of the part of our law in dispute between the parties because, though that interpretation or view has been judicially approved and is what legal advisers would now and previously convey to their clients, it is nonetheless out of line with principles, policies and standards acknowledged (now, and when the dispute arose) in comparable parts of our law–so out of line that it ought now to be declared to have been a mistaken view, and set aside in favour of a rule that, though new in relation to the subject-matter and area of law directly in issue between the parties, is nevertheless not a novelty or act of legislation (taking our law as a whole), and can fairly be applied to the parties and dispute before the court. 

October 28, 2015 in Moreland, Michael | Permalink

Joshua Mitchell on the "Age of Exhaustion"

Perhaps I just need to have a second cup of coffee this morning, but I thought this long essay by Joshua Mitchell of Georgetown on the "Age of Exhaustion” at the American Interest brilliantly captures much about our political and cultural moment—Liberalism (by which Mitchell means a good bit of modern American conservatism) and anti-Liberalism having run their course, we’re tired. Highly recommended with much to think about and contest throughout. A bit:

What Tocqueville understood over and above his contemporaries was that while the transition to democratic social conditions is always tumultuous, once they have settled in, a new sort of problem emerges: Citizens will lose faith in liberty and no longer labor to maintain and defend it. Instead, they will prefer a quiet, purportedly beneficent equality in servitude, a despotism that assures them that they have security and adolescent entertainment: Facebook, Twitter, never-ending video games, and the titillation of ever more mesmerizing gadgets. This delivers them from the specter of anxiety and the burden of freedom. The democratic age ends, neither with robust Liberals striving in a forever imperfect world, nor with defiant anti-Liberals striving to perfect the world, but rather with The Great Exhaustion. Striving, uncertainty, risk, labor, suffering, insult—these become too much for our fragile constitutions to bear. Above all, in the time of The Great Exhaustion, no one wants to “feel uncomfortable” and, so, we conspire to organize the world so that it is without duress or hardship. The 1 percent political and commercial classes are happy to oblige.

October 28, 2015 in Moreland, Michael | Permalink

Friday, October 9, 2015

John Henry Newman on Arguments

Today is the Feast of Blessed John Henry Newman (the date of his conversion in 1845). Newman is the towering Catholic intellectual figure of the nineteenth century, but he seems to me unduly neglected outside of somewhat narrow historical and theological circles. For those of us working on broadly legal, moral, and political questions, the fact that Newman wrote little directly on what we would conventionally term "ethics" or "political theory" explains a good deal of that neglect (as he wrote late in his life, "I feel myself to be so little of a judge on political and even social questions").

But in addition to his magnificent sermons, The Idea of a University, and other occasional writings, there is a feature of Newman's thought that might be an important consideration for how legal scholars go about making arguments and how legal arguments come to have persuasive force. It is Newman's account in The Grammar of Assent (and also earlier in such places as Sermon 13 of his Oxford University Sermons) that acceptance of an argument depends on a variety of prior beliefs and dispositions of the person considering the argument. As Alasdair MacIntyre summarizes Newman's view in God, Philosophy, Universities: A Selective History of the Catholic Philosophical Tradition (2009):

Newman himself contended that arguments—outside mathematics and formal logic—do not have compelling force as such, and he therefore spoke of such arguments as probable rather than demonstrative. A probable argument is one that may be found compelling by one individual, but not by another because of the different antecedent background beliefs that each brings to her or his evaluation of that argument. It is these background beliefs—what Newman called “that large outfit of existing thoughts, principles, likings, desires, and hopes, which make me what I am” [Grammar of Assent, Ch. 10, §2]—that make us find a particular probable argument compelling or not. So how we respond to an argument may be a test of us and not only of the argument. We have to become the kind of person who is open to just those arguments that directs us toward the truth. And if, because of our character and our antecedent beliefs, we fail to be open to the truth, this failure will determine our philosophical as well as our other stances. But which then are the arguments that direct us toward the truth?

They will be, if Newman’s conclusions in The Idea of a University are correct, arguments that enable us to integrate our theological understanding of the created universe with the understanding of each of the different aspects of that universe that is afforded by the enquiries of each of the secular disciplines, by Newman’s old age an ever-growing multiplicity of independent and wide-ranging enquiries in the natural and social sciences as well as in the humanities (pp. 149-50).

There is much more to say, of course, but my modest suggestion for now is that Newman makes a vital point here about how reason (including legal reasoning) operates. Legal arguments are neither mathematically demonstrative (as I suppose a caricature of legal formalism would have it) nor radically under-determined and relativistic. As first-year law students come to figure out (ideally before final exams), learning about the law is neither a mechanical application of memorized rules to cases nor a free-for-all exercise in which any answer is as good as the next. Legal concepts such as "intent," "equal protection," and "rights"  have a range of possible meanings, some better and legally more persuasive than others. A lot of academic debate (not to mention debates in the wider political culture) proceeds as if making arguments to each other were a matter of simply showing that x is true or that y is mistaken. But if we take seriously what Newman argues about arguments, persuading others depends on a complex set of background considerations and, ultimately, on one's character and the integration of one's beliefs.

October 9, 2015 in Moreland, Michael | Permalink

Thursday, September 17, 2015

Saint Robert Bellarmine


A few things for today's Memorial of Saint Robert Bellarmine (1542-1621), the Counter-Reformation Jesuit cardinal and one of the great political theorists in the Catholic tradition:

Pope Benedict XVI's reflection on Bellarmine's legacy as a doctor of the Church is available here.

My friend Matthew Rose published a brilliant paper on Hobbes and Bellarmine in the Journal of Moral Theology over the summer (available here at page 43). A bit from that:

In the pope’s private chapel on All Saints Eve in 1614, an elderly Robert Bellarmine joined a group of fellow cardinals and Pope Paul V for Vespers. At the time an advisor to the Sacred Congregation of the Universal Inquisition, Bellarmine could not have known he was being closely watched by a visitor, then in his late twenties, who would go on to compose the most important political treatise in the English language. The tutor to William Cavendish seems to have made a special point of bringing his pupil to see the Cardinal, whom his travel journals describe as a “little, lean old man” distinguished for his “rank” and “learning.”

Some thirty-five years later Thomas Hobbes would complete his observations of Bellarmine, granting him the distinction of being the only modern author identified by name in Leviathan.


Hobbes’s attack on Bellarmine is arguably the most mature expression of a debate between temporal and spiritual authority that had grown steadily in sophistication since the eleventh century. In the pages of Leviathan, it can for the first time be fairly described as a debate between the church and the fully modern state. Its most interesting feature is that, unlike previous iterations, it is not fundamentally about rival jurisdictions. Hobbes instead challenges Bellarmine with a rival account of Christianity itself, one that aims to show how classical forms of Christian theology need to be reformed by enlightened modes of thought. Hobbes argues that the pope’s “indirect power”—his alleged spiritual authority over temporal matters that involve man’s supernatural end—reflects a defective understanding of both revelation and reason.

Matthew Rose, "Hobbes contra Bellarmine," 4 Journal of Moral Theology 43 (2015), at 43, 45 (citations omitted).

And then this appreciation (qualified a bit later) from John Courtney Murray, SJ writing in Theological Studies:

An appreciation of Bellarmine's political theology must needs be generous; here it may also be brief. His defense of the permanent and absolute principles on which that theology rests was brilliant and effective. The essence of the "common cause" that he defended was, of course, the distinction of the two powers. Bellarmine gave it a newly luminous statement by his emphasis on the purely spiritual power of the Church, and by his elaboration of Thomistic political philosophy. In this respect he effected a doctrinal advance within the Church herself, by finally disposing of the confusions and exaggerations of the hierocrats. Moreover, out of this doctrinal synthesis, by analysis of its terms, he drew a newly effective statement of the second great principle that is part of the Catholic "common cause"; I mean the primacy of the spiritual power and the subordination of the temporal power. Here he did a service not only to the Church but to the spiritual freedom of mankind, in that he set a stern barrier to the tyrannical pretensions of royal absolutism. His doctrine shattered all three elements of the theory of "divine right": the exclusive rightness of the monarchical form of government, the belief in an individual monarch's inalienable right to govern, possessed independently of human agency, and the assertion of the irresponsibility of the king—his absoluteness. Here was a political as well as a theological achievement of a high order.

"St. Robert Bellarmine on the Indirect Power," 9 Theological Studies 491 (1948), at 532.

September 17, 2015 in Moreland, Michael | Permalink

Friday, August 28, 2015

John Goldberg on Helmholz, Natural Law in Court

John C.P. Goldberg, one of the leading tort and private law theory scholars writing today, has a terrifically interesting review here at The New Rambler of a new book by Richard Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard Press, 2015). What Goldberg writes in his conclusion about the possible implications of Helmholz's recounting of natural law in legal history is especially rich for those working in Catholic legal theory. As Goldberg puts it, natural law (or merely lawyers' belief in natural law) might be like phlogiston theory in the history of science ("an account of how the widespread acceptance of a demonstrably false idea can contribute to the growth of knowledge"), just another discourse about law that has now been supplanted, or, perhaps, a still-relevant way of thinking about what law is: "once we better understand what past jurists actually had in mind when they talked about natural law, we will recognize that (for better and worse) we continue to think about law similarly, even though we sometimes use different terminology."

August 28, 2015 in Moreland, Michael | Permalink